Thursday, September 27, 2012

Using TRAPWIRE to Investigate Police Misconduct by David L. Hudson || ABA Law Journal

Using TRAPWIRE to investigate misconduct in the Police State?

by Elyssa Durant,
August 23rd 2012

Posted Mar 1, 2012 4:40 AM CDT
By David L. Hudson Jr. from ABA Law Journal

Walking past Boston Common, the city’s august park, in 2007, attorney Simon Glik noticed several police officers arresting a young man. Glik heard another bystander say he thought the police were using excessive force. So he pulled out his cellphone and began shooting video of the incident.

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After arresting the young man, one of the officers turned to Glik, saying, “I think you have taken enough pictures.” When the officer asked Glik whether his audio recorder was on, Glik acknowledged it was. Glik was then arrested for violating a state wiretap law and two other state offenses.
The charges were subsequently dropped, but for Glik that was just the beginning. He filed a constitutional tort suit alleging violation of his First and Fourth Amendment rights. The officers filed a motion to dismiss, contending they were entitled to qualified immunity, enabling government officials to avoid liability if they don’t violate clearly established constitutional or statutory law. But a federal district court denied the officers’ claim.
And last August, the 1st U.S. Circuit Court of Appeals at Boston ruled in Glik v. Cunniffe that the officers violated Glik’s clearly established constitutional right to video-record the police performing their duties in public.
“Our recognition that the First Amendment protects the filming of government officials in public spaces accords with the decisions of numerous circuit and district courts,” the panel wrote. The case went back to the federal district court and the parties are in discovery. With the ubiquity of cellphones, the ease of video-recording and the availability of such websites as YouTube, people can respond quickly to police incidents and broadly circulate the recordings.


“The prevalence of cellphone cameras with high enough resolutions for people to record the police and then be able to disseminate it over the Internet” is a major reason for the video-recording, says Boston attorney Jeffrey P. Hermes, director of the Citizen Media Law Project. But law officers are often uncomfortable. “Many officers are also uncomfortable that their activities might be displayed on the Internet and otherwise widely distributed,” says Portland, Ore., lawyer Bert P. Krages, who specializes in the area. “Some also have the impression that photography presents a security risk and are acting according to a post-9/11 mentality.” Adds Krages: “Law enforcement personnel are still grappling with the idea that ordinary citizens have the right to take images, whereas previously such photographs and videos were taken by professionals employed by traditional media companies.”

“When you talk about citizen journalists, there is also a slightly different relationship between those individuals and the police and the relationship that many mainstream journalists have with the police,” Hermes says. “Those mainstream journalists who cover the police have developed an understanding with the police that many private individuals have not.”
The 1st Circuit found it irrelevant that Glik was a private citizen rather than a professional journalist. “The proliferation of electronic devices with video-recording capability means that many of our images of current events come from bystanders with a ready cellphone or digital camera rather than a traditional film crew,” the court said. “Such developments make clear why the news-gathering protections of the First Amendment cannot turn on professional credentials or status.”


Glik is far from the only case. The American Civil Liberties Union of Illinois also has a case pending in the Chicago-based 7th Circuit that challenges the constitutionality of the Illinois Eavesdropping Act, as it applies to making video and audio recordings of police performing their public duties.
ACLU of Illinois v. Alvarez, filed in August 2010, claims the broad nature of the Illinois law may expose ACLU members to arrest. “The act makes audio-recording police officers in these circumstances a felony,” the complaint states. “Due to a reasonable fear of arrest and prosecution, the ACLU is restrained from engaging in this conduct.”
A federal district court dismissed the case as moot in October 2010 and the ACLU appealed. Oral argument took place in the 7th Circuit last September.
In May 2011, Emily Good was arrested in Rochester, N.Y., for taking video of police conducting a traffic stop on the street in front of her yard. According to published accounts, police told her they didn’t feel safe with her there. She was later taken into custody.

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In April 2010, Anthony Graber faced an indictment in Abingdon, Md., after he recorded a state trooper giving him a ticket and then posted the video on YouTube. Graber, a 25-year-old staff sergeant for the Maryland Air National Guard, was riding his motorcycle down Interstate 95. On top of his helmet was a camera he often used to record his journeys.

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The camera was rolling when an unmarked gray sedan cut him off. A man wielding a gun emerged from the driver’s side, yelling at Graber and ordering him to get off his bike. Only then did the state trooper identify himself and holster his weapon. Graber was cited for doing 80 in a 65-mph zone.
Graber accepted his ticket, then posted his video. A few weeks later, he was awakened by six officers raiding his parents’ home, where he lived with his wife and two children. He learned later that a grand jury indictment alleged he had violated state wiretap laws by recording the trooper without his consent.
“Police justifications come in a few different flavors,” Hermes says. There are security concerns and charges of violating wiretap laws, which vary by state. But police also claim they are covered by qualified immunity. The doctrine shields government officials from liability for the violation of an individual’s federal constitutional rights—so long as the official’s actions, even if later found to be unlawful, did not violate “clearly established law.”
David Milton, a Boston-based attorney who represents Glik, points to the 2010 case Kelly v. Borough of Carlisle. There the 3rd Circuit at Philadelphia granted qualified immunity to a police officer who arrested a passenger in a vehicle he had pulled over for speeding. The officer discovered the passenger was video-recording him and claimed the passenger violated Pennsylvania’s Wiretap Act. The appeals court determined that the officer was entitled to qualified immunity because he reasonably believed he had the authority to arrest the passenger.
Part of the problem, Milton says, stems from a 2009 U.S. Supreme Court decision, Pearson v. Callahan, in which the justices said lower courts had the option of deciding cases based on whether the law was clearly established, without first determining whether there had been a violation of individual constitutional rights.
But Glik altered the balance, saying there is a clearly established right to monitor the police.
“On the First Amendment issue, the concept that there is a clearly established right seems consistent with prior case law in the 1st Circuit and the experience of media recording in public as long as there have been video cameras,” Hermes says. “For decades we have had television stations recording in public and not facing sanctions.”
Adds Milton: “What is so good about the 1st Circuit decision in Glik is that the judges recognized that even though there may not be a prior case of a police officer in a park with a person on a cellphone, basic long-standing First Amendment principles clearly apply to the situation even though it involves new technology.”
Although there is no Supreme Court ruling that finds a right to record in public, Hermes says, many believe there is a clearly established constitutional right to monitor the police.
“Police serve a vital function and most law enforcement officers are very decent people who should be commended,” Krages says.

“However,” he adds, “the police are in a position to grossly abuse civil liberties, and the bad ones cause a lot of harm. In many situations, a determination of what actually happened comes down to deciding whether the officer is more credible than a suspect or citizen. Consumer-level imaging, particularly video, has captured images of officers acting very inappropriately in all sorts of situations.”
Learn more about Professor Hudson here... or visit his website at

glad to know ya!


David L. Hudson Jr. is a scholar at the First Amendment Center where he writes for the Center’s website, speaks to the media and lectures on a variety of First Amendment issues. He is the author, co-author or co-editor of more than 35 books, including Let The Students Speak: A History of the Fight for Free Expression in American Schools (Beacon Press, 2011), The Encyclopedia of the First Amendment (CQ Press, 2008)(one of three co-editors), The Rehnquist Court: Understanding Its Impact and Legacy (Praeger, 2006), and The Handy Supreme Court Answer Book (Visible Ink Press, 2008). He has written several books devoted to student-speech issues and others areas of student rights. He also serves as a First Amendment contributing editor for the American Bar Association's Preview of United States Supreme Court Cases. Professor Hudson teaches First Amendment and Professional Responsibility classes at Vanderbilt.


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I was trying to de-escalate the situation with the local Police Department since I realize how much danger this city is in given recent laws to persecute Muslims and people who were not born in the United States 287(g) However, after watching the violence erupting around me, knowing that I am the primary target [thanks to COINTELPRO agent provocateurs] and being questioned by the police about my twitter stream, I really don't give a fuck.

These people have no idea how they are being manipulated by disinformation agents, toxic living conditions and a system that is far more corrupt than even I imagined. The "monitor" who controls the surveillance cameras clearly has some special deal with Metro because despite all the violence that broke out, he finds the time to threaten, harass and stalk me ignoring the fact that several residents threatened me after spooks came in and told people to stay away from me or they will "get in trouble" WHAT THE FUCK?

I have no history of violence and have never even been in a fight,I weigh 124 pounds and all these people are afraid of me? Do I "look dangerous" because I am quite certain it won't be long before someone makes another attempt on my life. 

Much like Trayvon Martin, I was told police were on there way after a man threw a brick through my window and then chased me down the street. I was on the phone with 911 the whole time screaming "HELP, HELP, HELP" yet the police claim they did not want to waste radio space to update status of my call to a Code 3. Are you fucking kidding me? 

911 told me to return to the scene of the crime where I was assaulted a second time, and the cops didn't even bother to arrest him or take witness statements. In fact, the officer would not even step out of the car to speak with me because he did not like the way I was dressed. Because no action was taken against the man that assaulted me and vowed to kill and my father (who just happens to be a former Fed) 

I constantly carry my iPhone because the cops claim they did not have enough evidence to arrest this man. They never bothered to check the surveillance camera and did not take statements from additional witnesses. 

They did, however take issue with the fact that I placed a video on YouTube and were even more upset that I contacted a former colleague in the Mayor's Office who then requested an investigation. They sent two Lieutenants to my home; one was aggressive and disrespectful and was more interested in what book I was reading and my website than the facts of the case. I was told that they would follow up with the other witnesses who would corroborate my story, and that a Special Operations Unit and Gang Unit would be contacted regarding the racial comments that became commonplace every time I left the apartment. One man hung up Nazi flags, another started praying in Muslim and all hell broke loose in the neighborhood. I became a target because I was white in a Black neighborhood, and apparently that alone was enough to incite hatred among the other tenants and I feared for life each time I left my apartment, so the police told me NOT to leave my home. THAT IS OUTRAGEOUS. 

The other tenants became more and more abusive and violent since they now had a new sense of entitlement because they knew the police would not take action. It is worth noting that even after I left, the violence continued to escalate and one women was stabbed and several other injured in fights that broke out in the hallway. 

The cops still did not arrest the people who continue to live in the neighborhood, and some of them have shown up here at my new apartment to harass me and spread rumors. The neighbors here have suddenly became abusive and overly concerned with my religion and it seems the writing is on the wall. They think my healthy paranoia is "suspicious" and I think their behavior is outrageous. They constantly stand outside my window and scream at me and the "monitor" called the police on me after he threatened me and told me I was not allowed to go near a "white car." There were SIX white cars, two of which have no tags, so how am I to know which white car is the one who stopped me at the mailbox and told me that two men were knocking at my door and were here to beat me up? 

I may very well be the next Treyvan Martin and if so, so be it. I am old enough and experienced enough to know that these people do not see the bigger picture~ that they are being used to as examples to bring down the police state and usher in the New World Order. I leave these notes because I do not know if I will get shot at today, tomorrow or next week, and I think it is important to let people know that I have spent my entire life studying gang violence, and have fought hard against police corruption and discrimination so regardless of what happens to me, I do not want my work (or experience) to be in vain. 

I am one of the good guys, and if you can't see that by now... then take some time to look through some of my publications which are systematically being removed from the internet by groups like Anonymous, Lulz, and AntiSec. 

This breaks my heart, but I am fighting a losing battle. I am starting to question my commitment and given the communities response~ I am not sure if they are worth the sacrifice.


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